Monday, 5 December 2016

What fishing on the Thames can tell you about Brexit in the courts

One of the depressing things about constitutional law, particularly in the United States, is the regularity with which people decide their position on a matter of law based solely on whatever is most convenient for their political beliefs at that moment. The number of people who say "this is constitutional, even if I wish it weren't" or conversely "this is unconstitutional, even though I wish it were" when confronted with a given dispute is vanishingly small.

This is the case even when people have previously stated essentially the opposite position in a case. There was much derision about the position of the US supreme court in Hellerfrom people who saw the US court essentially making up the law on the spot without any explicit wording in the US constitution on which to base their view, but the same people are often vigorous defenders of the court's reasoning in Roe v Wadewhere arguably the same thing was done.

For this reason, I want to be clear that whilst I am still firmly in the Remain camp, I am of the view that the UK government should win the appeal currently being heard in the UK Supreme Court. I am very much persuaded by the reasoning put forward by more qualified people than I on this score (see, e.g., here, for one anonymous-but-learned view).

In a simplified version, according to my understanding, you might imagine what might happen if the UK signed a treaty with Timbuktoo granting its citizens the right to visit the UK for the purposes of fishing on the Thames.

The treaty might go into great detail about the rods and lures that might be used, the dates on which fishing could be done, and other terms and conditions which might be regularly altered, but to implement this into UK law a simple parliamentary act saying "All rights arising from time-to-time as a result of the Anglo-Timbuktoo agreement shall be available in the UK" is all that is required. Such legislation would be advantageous as it would not require amending every time the treaty itself was amended, but would simply automatically convey every addition or removal from the treaty directly into UK law.

After a while, though, English fishermen tire of the citizens of Timbuktoo hogging all the best fishing spots. A campaign is started in the newspapers in which the xenophobic bogeyman of the Timbuktoo fisher robbing British people of their weekend enjoyment is raised. A hard-fought, but advisory, referendum is held delivering a 52% majority for ending the treaty. The government then tries to withdraw from the treaty by issuing notice under an exit clause of the agreement.

People might be upset that their travel plans to Henley had been upset, that their investment in fishing tackle and hotel rooms had gone to waste, but there would be no question that no further legislation was needed in these circumstances. It would be very clear that the parliamentary act enacted the whole of the treaty, including the exit clause, into UK law, and that furthermore the act itself clearly envisaged that rights under the treaty might be removed as a result of its amendment and operation. The government cannot be accused of acting unreasonably as the referendum clearly shows a reasonable grounds to act.

This, according to my understanding, is effectively the situation in the present Brexit litigation: whilst rights under EU law will inevitably be lost, this is simply a result of how the European Communities Act 1972 works. The ECA automatically conveys changes in EU law, including that law ceasing to apply entirely to the UK, directly into UK law. By issuing notice under Article 50, the UK government is simply exercising its constitutional role as the maker and breaker of international treaties, and no further parliamentary legislation is needed to give this effect as the ECA 1972 already does this.

[Picture: Fishermen and their Boats at Millbank on the Thames. Via Wiki]